Gov. Rick Scott recently signed into law Senate Bill 436, the so-called Florida Student and School Personnel Religious Liberties Act.
This unnecessary and constitutionally suspect law is intended to do an end-run around U.S. Supreme Court decisions barring organized, school-sponsored prayer in public schools. Until it is ruled on by the courts, SB 436 will create a legal quagmire, as well as divisive consequences for Florida’s public schools.
As a starting point, the law is unnecessary. Our public schools are in no way devoid of religion. The First Amendment and federal law already provide students with the right to privately pray alone or in groups during noncurricular time, as well as pray to themselves at any time.
In secondary schools, students may form noncurricular religious clubs. After school and during nonschool hours, religious groups may use school facilities for student religious clubs or worship. And Florida’s teachers, students, and parents have strong religious accommodation rights in the form of the Florida Religious Freedom Restoration Act.
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SB 436 is really about empowering a teacher, parent, or student to impose his or her faith on other students in a captive audience setting. Without qualification, it prohibits public schools from discriminating against “…a parent, or school personnel on the basis of a religious viewpoint or expression.”
This language plainly allows a teacher or parent to give, for example, a Christian, Jewish, or Muslim prayer in a classroom to children as young as 5; or conversely a message expressing disbelief in religion.
Either circumstance would violate longstanding Supreme Court precedent against public-school-sponsored religious indoctrination or religious coercion.
The law also purports to create limited public free-speech forums for students at any school event where students are allowed to publicly speak, which could include graduation, home room, morning announcements, football games, and other assemblies.
In these forums, students are permitted to speak on an “otherwise permissible subject” and cannot be discriminated against for “expression of a religious viewpoint.”But this provision takes language from multiple Supreme Court decisions out of context and it does not create a true limited public forum. So a student prayer, proselytizing message, or message denigrating religion made in a SB 436 forum would remain school-sponsored and therefore be unconstitutional.
Aside from its constitutional defects, the law will divide school communities along religious or other lines. Schools will have to allow expression on all religious viewpoints, including fringe faiths or speech denigrating religion. Indeed, just last year the Satanic Temple sought to access multiple public schools. And SB 436 would clearly allow a student giving opening remarks at a December holiday concert to deny the existence of Jesus, God, or, more innocuously Santa.
The law’s prohibition on discrimination against religious viewpoints also explicitly and implicitly requires that all expression, secular or sectarian, must be permitted. So in the classroom a teacher or visiting parent could give a message promoting or opposing LGBTQ rights. A student introducing a program about the Civil War could say that the “Confederate States were right and slavery should have remained the law of the land because it was good for the American economy.”
Ultimately, SB 436 creates a legal catch-22 for Florida’s public schools and effectively puts a “Sue me sign” over all of them. If a school follows the letter of the law and allows a prayer, proselytizing message, or one denigrating religion by a student, parent, or teacher, there will be a violation of the First Amendment’s Establishment Clause.
But if a school follows Supreme Court precedent by barring such school-sponsored prayer or religious expression, it will be in violation of state law. In light of this inherent conflict and Florida’s religious diversity, SB 436 will undoubtedly be challenged in federal court and likely struck down.
David Barkey is religious freedom counsel and Southeastern area counsel of the Anti-Defamation League.